NOTE OF APPEAL AGAINST SENTENCE BY MAXIMILIANO MORENO

Factual and Procedural Background

The sentencing judge imposed an Order for Lifelong Restriction (OLR) with a punishment part of 32 months' imprisonment at the High Court at Glasgow on 25 March 2024, following the Appellant's pleas of guilty to four charges at a continued preliminary hearing. The OLR related only to charge 1. On charges 2, 3, and 4, the judge imposed a concurrent sentence of 18 months in cumulo. Both sentences were backdated to 23 June 2022.

Charge 1 involved the Appellant, with his face masked, approaching a female complainer from behind and assaulting her with intent to rape by compressing her neck and restricting her breathing. Charges 2 and 3 related to brandishing and possession of a knife in public, while charge 4 concerned an attempt to pervert the course of justice by disposing of clothing and items used during the attack.

The Appellant was 20 years old at the time of the offenses and 22 at sentencing. He had no previous convictions and a history of challenging and violent behavior dating back to childhood and adolescence, including threats, aggression, and mental health interventions. A risk assessment report was prepared, and the sentencing judge found that the Appellant presented an enduring risk of serious harm to the public, justifying the OLR.

Legal Issues Presented

1. Whether the criteria for imposing an Order for Lifelong Restriction were met on the balance of probabilities, specifically whether the Appellant, if at liberty, would seriously endanger the lives or wellbeing of the public.
2. Whether the sentencing judge erred in imposing an OLR instead of a lesser extended sentence, considering the Appellant's age, lack of previous convictions, and potential for rehabilitation.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the criteria for an OLR were not met, relying on his youth at the time of the offense and sentencing, early guilty plea, lack of previous convictions, and progress made while in custody.
• He highlighted his enhanced confidence, communication skills, participation in constructive activities, supportive family environment, absence of substance misuse, and cooperation with risk assessments.
• He argued that the sentencing judge should have imposed an extended sentence with a ten-year extension rather than an OLR to facilitate ongoing rehabilitation.
• Reliance was placed on the risk assessment report indicating a medium risk level and the potential for positive change with maturity and intervention.
• Counsel for the Appellant referred to the precedent set in Ferguson v HM Advocate (2014 SCCR 244) and distinguished the case from Mitchell v HM Advocate (2024 SCCR 131), arguing the judge erred in finding the risk criteria met.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the sentencing judge's application of the statutory criteria under sections 210F and 210E of the Criminal Law (Consolidation) (Scotland) Act 1995. It noted that the judge relied heavily on the risk assessment report by Dr Baird, who placed the Appellant's risk level between medium and high but acknowledged considerable uncertainty due to the Appellant's lack of prior criminal history and supervision.

The court examined the nature and circumstances of the offenses, including the premeditation and possession of items suggesting forensic awareness and intent to commit serious harm. It also considered the Appellant's extensive history of violent and threatening behavior from childhood, his mental health background, and the presence of psychopathic traits such as lack of empathy.

While recognizing the Appellant's youth, potential for maturation, and some protective factors including cooperation and engagement in custody, the court concluded that these did not outweigh the seriousness of the risk posed. The Appellant's conduct and preparations for the offense demonstrated a propensity to seriously endanger the public.

The court referred to the sentencing guidelines for young people and the need to balance rehabilitation with public protection. It agreed with the sentencing judge that the risk criteria for an OLR were met on the balance of probabilities and that the judge was bound to impose the order.

Holding and Implications

The court DISMISSED the appeal against sentence.

The direct effect of this decision is the affirmation of the Order for Lifelong Restriction imposed on the Appellant, reinforcing the view that the Appellant presents an enduring risk of serious harm to the public. The decision confirms the application of statutory risk criteria and sentencing principles in cases where offenders display a propensity for serious violence combined with concerning personality traits and behavior patterns. No new legal precedent was established beyond the application of existing principles.